Progress DataDirect JDBC and/or DataDirect ODBC
Pre-Release Software
Limited End User License Agreement
THIS LIMITED END USER LICENSE AGREEMENT ("TERMS") CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU AND PROGRESS THAT GOVERNS YOUR USE OF PRE-RELEASE VERSION(S) OF EITHER THE PROGRESS DATADIRECT JDBC AND/OR DATADIRECT ODBC PRODUCTS AND ANY ASSOCIATED DOCUMENTATION AND/OR INFORMATION RELATING THERETO (THE "SOFTWARE".) YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AND YOU ACKNOWLEDGE YOUR AUTHORITY TO DO SO ON BEHALF OF YOUR COMPANY. ANY USE OF THE SOFTWARE SHALL BE DEEMED ACCEPTANCE OF THESE TERMS. "PROGRESS" AS USED HEREIN MEANS PROGRESS SOFTWARE CORPORATION, LOCATED AT 14 OAK PARK DRIVE, BEDFORD, MASSACHUSETTS 01730.
By accepting these Terms you represent that you are not barred from receiving the Software under the laws of the United States or other applicable jurisdiction, including the country in which you reside or from where you use the Software.
Progress may update or change these Terms from time to time. You understand and agree that your continued use of the Software after the Terms have changed constitutes your acceptance of the Terms as revised.
You acknowledge and agree that Progress and/or its licensors own all legal right, title and interest in and to the Software, including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. You further agree that the Software contains proprietary and confidential information of Progress and/or its licensors and incorporates trade secrets of Progress and/or its licensors protected by applicable intellectual property and other laws. You agree not to remove any product identification, copyright notices, or other notices or proprietary restrictions from the Software.
Progress grants you a non-exclusive, non-transferable, royalty-free, limited internal, non-production use license to use the Software only for testing and evaluation for the sole purpose of providing Progress with feedback on the quality of the Software, in accordance with these Terms.
5.1 You agree to use the Software only for purposes as permitted by these Terms and for no other purpose. Without limiting the foregoing, you agree not to (and not to permit anyone else to):
(a) reproduce, copy, duplicate, modify, or create a derivative work of the Software,
(b) reverse engineer, decompile, or otherwise attempt to discover the source code of the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, in which case you agree to observe strict obligations of confidentiality and provide Progress reasonable advance written notice and the opportunity to assist with and/or conduct such activity on your behalf and at your expense, or
(c) sell, resell, trade, rent, lease, distribute, sublicense, assign, grant a security interest in or otherwise transfer any right in the Software (or any part thereof) or permit any other person to use the Software (or any part thereof) on a time sharing or any other basis.
5.2 Progress reserves the right to modify or impose any limitations on the use of the Software at any time, with or without notice to you.
The Software, including technical data, are subject to U.S. export control laws, including, without limitation, the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. You will not directly or indirectly export or re-export the Software, or any direct product thereof, without first obtaining Progress's written approval. You agree to comply strictly with all regulations and acknowledge that you have the responsibility to obtain licenses to export, re-export or import the Software. The Software may not be downloaded, or otherwise exported or re-exported (i) into, or to a national or resident of any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals, the U.S. Commerce Department's Table of Denial Orders as amended from time to time, or any other list distributed by the United States government setting forth individuals or entities to which distribution of the Software would be prohibited by United States law.
If the Software is being used by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the U.S. Government's rights in the Software will be only as set forth herein. The Software and related documentation is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software and such documentation with only those rights set forth herein. Contract/Manufacturer is Progress Software Corporation, 14 Oak Park, Bedford, Massachusetts 01730.
8.1 You understand and acknowledge that the Software is in the development stage, is not a fully tested product offering, has not been released for commercial use, and is made available on an "AS IS" and "AS AVAILABLE" basis. The Software may contain known and/or unknown errors or inaccuracies that could cause failures, corruption or loss of data and/or information from your devices (including, without limitation, servers and computers). Progress strongly encourages you to back-up all data and information on your devices prior to using the Software. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR USE OF THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY INTERNET ACCESS FEES, BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF YOUR DEVICES, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION OR DATA.
8.2 Progress is not obligated to provide any maintenance, technical or other support for the Software, but may, from time to time during the period of these Terms provide Updates at Progress' sole discretion. For purposes of these Terms, an "Update" shall mean any update, patch, version and/or new release of or to the Software that Progress furnishes generally to its customers who participate in a beta or other pre-release evaluation program. Updates shall be subject to the terms and conditions of these Terms.
Progress reserves the right to modify, suspend or terminate your access to the Software (or any part thereof) at any time or from time to time, with or without prior notice to you. You agree that Progress shall not be liable to you or any third party for any modification to or of the Software, or for any damages that may result or arise out of termination or suspension of your access to the Software. You acknowledge that Progress has no express or implied obligation to provide, or continue to provide, the Software, or any part thereof, now or in the future. Without limiting the foregoing, you further acknowledge that Progress shall have sole authority and discretion to determine the period of time for its testing and evaluation of the Software, whether or not such testing has been successfully completed, and whether or not to offer the Software as a commercial product.
10.1 You acknowledge that the Software is the valuable proprietary and trade secret information of Progress or its licensors (if any). In the course of using the Software for the purpose permitted hereunder, you may also receive information relating to the Software and/or to Progress which is of a confidential and proprietary nature to Progress. The Software and such information shall be collectively referred to in this Section 10 as "Progress Proprietary Information". You shall (i) limit use and disclosure of the Progress Proprietary Information solely for the purpose permitted hereunder and only to your employees and consultants (collectively "Your Personnel") who have a need to know in order to complete said purpose; (ii) obtain and/or maintain written nondisclosure agreements with Your Personnel sufficient for you to comply with all of these Terms prior to granting Your Personnel access to the Progress Proprietary Information; (iii) not provide access to the Progress Proprietary Information to another party; and (iv) exercise the same degree of care that you use to protect your own confidential information, but in any event no less than reasonable care to protect the confidentiality of the Progress Proprietary Information. Without limiting the foregoing, you agree not to disclose the results of any benchmark or other testing relating to the Software to any third party without the prior written consent of Progress. You will ensure that Your Personnel comply with these Terms and their respective nondisclosure agreements. You will notify Progress immediately upon discovery of unauthorized use or disclosure of Progress Proprietary Information or any other breach of these Terms by you. You will cooperate with Progress in every reasonable way to help Progress regain possession of such Progress Proprietary Information and prevent its further unauthorized use.
10.2 The Progress Proprietary Information disclosed to you hereunder may include information about Progress' current and future plans and/or strategies relating to products, services, and/or business development. Progress reserves the right, in its sole discretion, to modify, change, alter or eliminate any such plans or strategies from time to time without notice, obligation or liability to you. Any future features or functionality that may be part of a product roadmap are for discussion purposes only and are not a commitment on the part of Progress to provide any such enhancement as part of any future release. You acknowledge that any buying decision is based solely on the features and functionality currently available as part of the current generally available product. All future features and functionality shared with you may be made available in a product at the sole discretion of Progress.
10.3 Progress is not interested in obtaining, and you agree not to disclose during the course of providing the feedback described in Section 11 below or otherwise in connection with your use of the Software or these Terms, any information which you consider to be proprietary or confidential.
10.4 You acknowledge that, in the event of any breach of the terms and conditions of these Terms, Progress will not have an adequate remedy in money or damages. Progress therefore shall be entitled in such event to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request and without the requirement of posting any bond. Progress's right to obtain such relief shall not limit its right to obtain other remedies.
11.1 As part of using the Software, Progress will provide you with the opportunity to submit feedback pertaining to the Software, including, without limitation, any ideas, comments, suggestions, concepts, know-how, techniques, information or other disclosures regarding your use of the Software or otherwise relating to the Software ("Feedback"). You are not required to provide any such Feedback, but if you do so, then the terms of Section 11.2 apply.
11.2 You agree that Progress is free to use without restriction (but not obligated to use) any Feedback you provide, for any purpose and without any accounting, royalty or other obligation to you.
The Software may contain or be accompanied by certain third-party components which are subject to additional restrictions. These components, if any, are identified in, and subject to, special license terms and conditions set forth in either the "readme.txt" file or the "notices.txt" file accompanying the Software ("Special Notices"). The Special Notices include important licensing and warranty information and disclaimers. In the event of conflict between the Special Notices and the other portions of these Terms, the Special Notices will take precedence (but solely with respect to the non-proprietary third party component(s) to which the Special Notice relates). Unless otherwise expressly stated in the Special Notices for any particular third party component, all third party components included in or accompanying the Software may be used solely in connection with the operation of the Software subject to and in accordance with the terms and conditions of this Agreement.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AS SUCH, TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THE SOFTWARE AND ANY SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. PROGRESS AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. IN PARTICULAR (BUT WITHOUT LIMITING THE FOREGOING DISCLAIMER), PROGRESS AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SOFTWARE WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SOFTWARE WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SOFTWARE WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED.
14.1 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AS SUCH, TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS OR LIMITATIONS SET FORTH IN SECTION 14.2 BELOW MAY NOT APPLY TO YOU.
14.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT PROGRESS AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF PROGRESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SOFTWARE OR ANY SERVICE; (II) ANY CHANGES MADE TO THE SOFTWARE OR ANY TEMPORARY OR PERMANENT CESSATION OF ACCESS TO THE SOFTWARE OR ANY PART THEREOF; OR (III) OTHERWISE ARISING UNDER THESE TERMS.
15.1 These Terms shall be effective from the date on which you accept them and shall expire sixty (60) days following such acceptance.
15.2 YOU UNDERSTAND AND ACKNOWLEDGE THAT THE SOFTWARE LICENSED TO YOU HEREUNDER MAY CONTAIN A DISABLING DEVICE THAT WILL AUTOMATICALLY DISABLE THE SOFTWARE AT THE EXPIRATION OF THE PRE-RELEASE EVALUATION PROGRAM (AS REFERENCED IN SECTION 15.1 ABOVE) OR THE EARLIER SUSPENSION OF YOUR USE OF THE SOFTWARE IN ACCORDANCE WITH SECTION 9 ABOVE OR TERMINATION OF THESE TERMS BY PROGRESS IN ACCORDANCE WITH SECTION 15.3 BELOW.
15.3 You may terminate these Terms at any time prior to its expiration or termination pursuant to Section 15.1 above by stopping use of the Software. Progress may terminate these Terms at any time by (i) providing you with written notice of termination or (ii) releasing the Software as a commercial product.
15.4 Upon termination of these Terms, you will cease all use of the Software and destroy all copies thereof and, upon receipt of a request from Progress, provide a written certification executed by you or your authorized representative certifying that such destruction of all copies of the Software has been completed. The parties' rights and obligations under Sections 3, 8.1, 9, 10, 11.2, 12-14 (inclusive), 15.4, 16 and 17 and any other obligations hereunder which by their nature would continue beyond the expiration or termination of these Terms shall survive expiration or termination of these Terms.
Any litigation or other dispute resolution between you and Progress arising out of or relating to these Terms or your use of the Software will take place in the Commonwealth of Massachusetts, and you and Progress hereby consent to the personal jurisdiction of and exclusive venue in the state and federal courts within Massachusetts with respect to any such litigation or dispute resolution. These Terms will be governed by and construed in accordance with the laws of the United States and the Commonwealth of Massachusetts, except that body of Massachusetts law concerning conflicts of law. These Terms shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
If you and Progress have entered into a mutually-executed Pre-Release Software License Agreement that applies to the Software, then that agreement will govern and supersede these Terms. Otherwise, these Terms shall constitute the entire agreement between you and Progress and govern your use of the Software and supersede any other prior or contemporaneous agreement, proposal, communication or advertising, oral or written, signed or unsigned, with respect to the Software. To the extent there are any terms and conditions contained in your purchase order or other documentation supplied by you such terms and conditions shall be deemed to be stricken and the terms and conditions of these Terms shall govern. Except as otherwise expressly provided for herein, these Terms shall not be changed, modified or altered in any manner except by an instrument in writing and signed by both parties. If any part of these Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of Progress to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms. You may not assign these Terms or any rights hereunder and may not delegate any duties under these Terms without Progress' prior written consent. Any attempt to assign or delegate these Terms without such consent will be null and void.
Revised: 5-February-2015
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